Unconstitutional Delay

Written on Behalf of Affleck & Barrison LLP

In a recent decision delivered by Justice Michael Moldaver, a unanimous Supreme Court of Canada sided with the dissenting opinion of Justice Brian O’Ferrall of the Alberta Court of Appeal criticizing the Crown for its failed prosecution and for institutional and logistical delays which could have been avoided.

The defendant, Shane Rayshawn Vassell, waited three years for a three-day trial. During that time, Mr. Vassell did whatever he could to move his case to trial. His defence counsel applied for a stay of proceedings under section 11 of the Canadian Charter of Rights and Freedoms due to the delay, which was denied. The appeal was also dismissed.

Mr. Vassell argued that any delay that was not his own fault is the Crown’s fault and that the Crown, as the state, should be held responsible for the institutional failings of the state. Justice O’Ferrall in his dissent, agreed with Mr. Vassell, finding that the trial judge had mischaracterized the nature of the delay. Justice O’Ferrall also noted that the Crown must bear some responsibility for delay where it results from a failure to apprehend the parameters of the case in a timely fashion.

In a concisely-worded decision, the Supreme Court noted that “courts must be careful not to miss the forest for the trees”. Mr. Vassel attempted to move his case to trial and much of the delay was caused by his six co-accused and their lawyers. Although the Crown was entitled to prosecute all seven accused jointly, the Court noted that it was also required to remain vigilant that this decision not compromise the rights of the accused persons.  The Court found that a more proactive stance on the Crown’s part was required in these circumstances.

The Supreme Court set aside Mr. Vassell’s conviction and entered a stay of proceedings.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison online or at 905-404-1947.

To read the full Supreme Court decision, click here.

To read the Alberta Court of Appeal decision containing Justice O’Ferrall’s dissent, click here.